Difference between revisions of "Family Law Arbitration"
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{{JP Boyd on Family Law TOC}} | {{JP Boyd on Family Law TOC}} | ||
Arbitration is a dispute resolution process in which the parties hire a neutral third party, a family law arbitrator, to make a decision resolving their dispute that they agree they will be bound by. While the job of a mediator is to help two people work towards a solution that they make for themselves, the arbitrator's job is to act like a judge and impose a resolution, after hearing the evidence and listening to the arguments of each party. | |||
This page provides an introduction to arbitration and discusses when to use arbitration in a family law dispute. This page also provides some suggestions about how to find a family law arbitrator. | This page provides an introduction to arbitration and discusses when to use arbitration in a family law dispute. This page also provides some suggestions about how to find a family law arbitrator. | ||
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==Introduction== | ==Introduction== | ||
Arbitration has rarely used been in family law matters in British Columbia, probably because most | Arbitration has rarely used been in family law matters in British Columbia, probably because most lawyers figured that if they have to have somebody impose a decision in a case, it might as well be a judge. In British Columbia, arbitration was most often used in a labour law context. The new ''Family Law Act'', however, makes a number of changes to the provincial law that improve the usefulness of arbitration in family law disputes. | ||
Arbitration has a number of advantages | Arbitration has a number of advantages as a way of resolving family law problems: | ||
#it allows a couple to hand-pick the particular person who will make decisions about the issues they cannot agree on, which means that they might pick an arbitrator who has a special expertise in, for example, children, tax problems or property | #it allows a couple to hand-pick the particular person who will make decisions about the issues they cannot agree on, which means that they might pick an arbitrator who has a special expertise in, for example, the care of children, tax problems or property issues; | ||
#it allows the couple to pick the particular rules that will apply to the | #it allows the couple to pick the particular rules that will apply to the hearing and decision-making process; | ||
#the arbitration process is private and | #the arbitration process is private and closed to the public; and, | ||
#the result of of the process is an award that is just as binding as a court order and | #the result of of the process is an award that is just as binding as a court order and is enforceable just like a court order. | ||
As well it | As well, it's often faster to arrange a date for an arbitration than for a court hearing. Although short trials of two or three days can be booked within six or eight months, it can take a year or longer to get a date for longer trials because the court is so busy. An arbitration can be booked as soon as everyone has the free time in their calendars. | ||
===The Arbitration Process=== | ===The Arbitration Process=== | ||
When a couple agrees to arbitrate their dispute — you can't force someone into arbitration, it has to be voluntary — they first pick their arbitrator and then | When a couple agrees to arbitrate their dispute — you can't force someone into arbitration, it has to be voluntary — they first pick their arbitrator and then meet with the arbitrator to discuss the process leading to the arbitration hearing and pick their rules. Most of the time, the rules people select are the more important parts of the Supreme Court Family Rules relating to evidence, experts and procedure at trial. | ||
Next, the parties will exchange the documents and information that are relevant to their dispute. If child support is an issue, for example, Financial Statements might be prepared and documents like income tax returns, T4 slips and paystubs might be exchanged. If the parties cannot agree on how a child should be cared for, they might hire a psychologist to prepare a report on the parenting arrangements that will work best for the child, called a ''needs of the child assessment'', or they might hire a third party lawyer or a social worker to talk to the child and prepare a ''views of the child report''. The nature of the documents that are important and the extent of the disclosure which is required | Next, the parties will exchange the documents and information that are relevant to their dispute. If child support is an issue, for example, Financial Statements might be prepared and documents like income tax returns, T4 slips and paystubs might be exchanged. If the parties cannot agree on how a child should be cared for, they might hire a psychologist to prepare a report on the parenting arrangements that will work best for the child, called a ''needs of the child assessment'', or they might hire a third party lawyer or a social worker to talk to the child and prepare a ''views of the child report''. The nature of the documents that are important and the extent of the disclosure which is required will change depending on the circumstances and how the parties decide to approach their dispute. | ||
Once the documents have been exchanged and | Once the documents have been exchanged and any reports have been prepared, the parties will attend one or more hearing with the arbitrator. These hearings take place in the arbitrator's office and are usually less formal than court hearings; there can be as much flexibility to the arbitration process as the parties and the arbitrator will agree to. At these hearings, each party presents their evidence, which may include witnesses who give testimony or may be limited to documents and affidavits, and then makes arguments to show the arbitrator why he or she should make a particular decision. | ||
After hearing process is over, the arbitrator will provide a written decision, called an ''award'', summarizing the evidence, resolving all of the issues and explaining why the arbitrator resolved the issues in the way he or she resolved them. | |||
===The | ===The ''Arbitration Act''=== | ||
The arbitration of family law disputes in British Columbia is governed by the provincial Commercial Arbitration Act. The highlights of the act are these. | The arbitration of family law disputes in British Columbia is governed by the provincial ''Arbitration Act'', formerly known as the ''Commercial Arbitration Act''. The highlights of the act are these. | ||
Section 1: An "arbitrator" is defined as a person who resolves a dispute referred to him or her by the parties. | Section 1: An "arbitrator" is defined as a person who resolves a dispute referred to him or her by the parties. | ||
Revision as of 15:53, 23 February 2013
Arbitration is a dispute resolution process in which the parties hire a neutral third party, a family law arbitrator, to make a decision resolving their dispute that they agree they will be bound by. While the job of a mediator is to help two people work towards a solution that they make for themselves, the arbitrator's job is to act like a judge and impose a resolution, after hearing the evidence and listening to the arguments of each party.
This page provides an introduction to arbitration and discusses when to use arbitration in a family law dispute. This page also provides some suggestions about how to find a family law arbitrator.
JP not done. No glossary tags to be added. Internal and external links to be added.
Introduction
Arbitration has rarely used been in family law matters in British Columbia, probably because most lawyers figured that if they have to have somebody impose a decision in a case, it might as well be a judge. In British Columbia, arbitration was most often used in a labour law context. The new Family Law Act, however, makes a number of changes to the provincial law that improve the usefulness of arbitration in family law disputes.
Arbitration has a number of advantages as a way of resolving family law problems:
- it allows a couple to hand-pick the particular person who will make decisions about the issues they cannot agree on, which means that they might pick an arbitrator who has a special expertise in, for example, the care of children, tax problems or property issues;
- it allows the couple to pick the particular rules that will apply to the hearing and decision-making process;
- the arbitration process is private and closed to the public; and,
- the result of of the process is an award that is just as binding as a court order and is enforceable just like a court order.
As well, it's often faster to arrange a date for an arbitration than for a court hearing. Although short trials of two or three days can be booked within six or eight months, it can take a year or longer to get a date for longer trials because the court is so busy. An arbitration can be booked as soon as everyone has the free time in their calendars.
The Arbitration Process
When a couple agrees to arbitrate their dispute — you can't force someone into arbitration, it has to be voluntary — they first pick their arbitrator and then meet with the arbitrator to discuss the process leading to the arbitration hearing and pick their rules. Most of the time, the rules people select are the more important parts of the Supreme Court Family Rules relating to evidence, experts and procedure at trial.
Next, the parties will exchange the documents and information that are relevant to their dispute. If child support is an issue, for example, Financial Statements might be prepared and documents like income tax returns, T4 slips and paystubs might be exchanged. If the parties cannot agree on how a child should be cared for, they might hire a psychologist to prepare a report on the parenting arrangements that will work best for the child, called a needs of the child assessment, or they might hire a third party lawyer or a social worker to talk to the child and prepare a views of the child report. The nature of the documents that are important and the extent of the disclosure which is required will change depending on the circumstances and how the parties decide to approach their dispute.
Once the documents have been exchanged and any reports have been prepared, the parties will attend one or more hearing with the arbitrator. These hearings take place in the arbitrator's office and are usually less formal than court hearings; there can be as much flexibility to the arbitration process as the parties and the arbitrator will agree to. At these hearings, each party presents their evidence, which may include witnesses who give testimony or may be limited to documents and affidavits, and then makes arguments to show the arbitrator why he or she should make a particular decision.
After hearing process is over, the arbitrator will provide a written decision, called an award, summarizing the evidence, resolving all of the issues and explaining why the arbitrator resolved the issues in the way he or she resolved them.
The Arbitration Act
The arbitration of family law disputes in British Columbia is governed by the provincial Arbitration Act, formerly known as the Commercial Arbitration Act. The highlights of the act are these.
Section 1: An "arbitrator" is defined as a person who resolves a dispute referred to him or her by the parties. Section 2: The act applies to commercial arbitration agreements and "any other arbitration agreement," such as family law arbitration agreements. Section 1: An "arbitration agreement" is defined as an agreement between two or more persons to have their dispute resolved by arbitration. Section 9: An arbitrator can make interim awards on any subject at issue, such as interim awards regarding the care and control of children, child support and spousal support. Section 14: The final decision of an arbitrator is binding on the parties, subject to the reversal of the arbitrator's decision if the process or decision is proceduraly defective, under s. 30, or if the decision is appealed to the court, under s. 31. Section 23: "An arbitrator must adjudicate the matter before the arbitrator by reference to law unless the parties, as a term of an agreement referred to in s. 35, agree that the matter in dispute may be decided on equitable grounds, grounds of conscience or some other basis."
Faith-Based Arbitration
Under the Commercial Arbitration Act, the parties can choose their own rules to govern the arbitration process. Nothing in the act says that those rules cannot be religious rules. Judaism and Islam each have religious laws that can apply to family law issues for members of those faiths. Members of the orthodox Jewish community may use the Beth Din to settle personal disputes. Muslims can use Sharia law to the same end.
Whatever rules a couple chooses, however, the result of the arbitration process must not be overtly contrary to the laws of British Columbia. For example, child support must be paid to the person who has the child most of the time by the person who has the child for the least amount of time, and the amount that person pays cannot be too different from what the Child Support Guidelines require.
Note that if the parties to faith-based arbitration wish to obtain a divorce, they must still initiate a action in the Supreme Court of British Columbia for a divorce order. A religious divorce, such as the Jewish Get, is not a legal divorce.
Parenting Coordination
The Commercial Arbitration Act also applies to parenting coordination. In this dispute resolution process, the arbitrator, called a "parenting coordinator," tries to first settle a parenting dispute through mediation. If the parents cannot find consensus, the parenting coordinator acts an arbitrator and makes an award resolving the dispute. The parenting coordinator's authority to resolve the dispute comes from the arbitration agreement the parents will sign, in this case called a parenting coordination agreement.
As with faith-based arbitration, or any other kind of family law arbitration for that matter, the parenting coordinator cannot make decisions that are contrary to the law in British Columbia, including the federal Divorce Act and the provincial Family Relations Act. The court will not uphold awards that are contrary to the law in this province.
See the website of the BC Parenting Coordinators Roster Society for more information about parenting coordination.
Back to the top of this chapter.
When to Use Arbitration
Only a few circumstances make arbitration a necessary choice over the mediation or litigation processes. Typically, a couple will choose arbitration if:
they wish the laws of their religion to apply to the proceedings; their positions are too far apart to make mediation a reasonable choice and must have a decision made for them, but do not want to go to the expense, anxiety and acrimony typically involved in litigation; they want to resolve their dispute privately and don't want to risk things being made public; the issues are extremely complex and require a decision-maker who is a specialist in the area; or, they want their dispute resolved more quickly than the court schedule will allow. Back to the top of this chapter.
How to Find a Family Law Arbitrator
This is the hard part about arbitrating family law disputes, as there aren't too many arbitrators who specialize in family law issues. Your first and best bet is to call a family law lawyer or two and ask if he or she knows anyone who arbitrates family law disputes; get the lawyer's referral. The family law lawyers I know of who do this sort of thing, and I expect there are many more of whom I don't know, are:
John-Paul Boyd, 604-689-7571 (Vancouver) Trudi Brown, QC, 250-595-2220 (Victoria) Stephanie Fabbro, 604-687-1133 (Vancouver) Lisa Hamilton, 604-687-1133 (Vancouver) Jane Henderson, QC, 250-595-2220 (Victoria) Larry Kahn, QC, 604-270-9571 (Richmond) Georgialee Lang, 604-669-7080 (Vancouver) Colin Millar, 604-682-3664 (Vancouver) Craig Neville, 604-688-1301 (Vancouver) Karen Nordlinger, QC, 604-689-7571 (Vancouver) These lawyers are all very skilled, highly respected and I recommend each of them. Unfortunately, they all practice in the Lower Mainland or Victoria, although I understand that Ms. Lang may also maintain a practice in Kelowna and Palm Springs. As an alternative, you might try contacting the Arbitrators Association of British Columbia or the BC Arbitration & Mediation Institute for other names.
Further Reading in this Chapter
Return to the first page in this chapter.
- Collaborative Processes
- Mediation
- Parenting Coordination
Page Resources, Links and Downloads
Legislation
- bulleted list of legislation referred to in page
Links
- bulleted list of linked external websites referred to in page
- Collab Roster
Downloads
The link below will open a sample mediation participation agreement in a new window. You may require a PDF reader to view this file; Adobe Acrobat Reader is a free PDF reader available for download from Adobe Software. In this sample, Jane Doe and John Doe are entering into a participation agreement with their family law mediator, Robert Smith.
- Mediation Agreement (PDF)
This sample document is just that: a sample. While it represents a more or less accurate picture of how these sorts of agreements might look, it may not be applicable to your situation and may not reflect the terms of the agreement you will sign if you decide to use mediation. Use it as a reference only.
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